Late Effort at the International Law Commission to Decriminalize the Crime of Aggression Is Wrong in Law

At summer’s end last year, the International Law Commission (ILC) concluded the work of its 73rd session and issued its annual report to the United Nations (U.N.) General Assembly. The report contains a set of draft articles on immunity of state officials from the criminal jurisdiction of a foreign country. 

The project ostensibly resulted from a judgment that the International Court of Justice (ICJ) delivered in 2002. Investigating magistrates in Belgium had issued an arrest warrant against Abdoulaye Ndombasi Yerodia when he was the minister of foreign affairs of the Democratic Republic of the Congo (DRC), seeking to prosecute him before Belgian national courts for crimes against humanity and war crimes. But in their judgment delivered in 2002, the ICJ held that the Belgian arrest warrant was invalid in international law, because Yerodia, as the Minister of Foreign Affairs of the DRC at the time of the arrest warrant, enjoyed immunity from prosecution in the national courts of Belgium—notwithstanding that the allegations involved conduct considered to be international crimes. Given the complex analysis in the ICJ judgment, including questions about who else might enjoy that kind of immunity as a state official, a member of the ILC proposed to his colleagues—and they agreed—that the question of immunity of state officials from foreign criminal jurisdictions should be more clearly regulated in an international treaty. 

The problem, however, is that some members of the ILC seized this opportunity to try and reverse long-established norms of customary international law, particularly the recognition of wars of aggression as criminal in international law, without any serious effort made to explain or justify the reversal. This should raise alarm bells for the international community and prompt the question: Does the international community accept it? 

It bears keeping in mind that it was not the U.N. General Assembly that prompted the ILC to commence work on the draft articles on immunity of state officials from the criminal jurisdiction of a foreign country. It was rather the ILC itself that chose to embark on the exercise in 2007, urged by one of its members, Roman Kolodkin, who served as the first ILC Special Rapporteur on the project. As the primary function of the ILC is to assist the United Nations with progressive development of international law, the ILC’s assumption of that task was unsurprising, though unprompted by the U.N. General Assembly. 

Considering that these efforts are entirely inconsistent with previous works of the ILC (as will be seen later), it is necessary to emphasize that the cohort of ILC members whose efforts are under discussion here are those who served from 2007 to 2022 (referred to hereafter as the “7-22 ILC Class”). The opening bracket of the referent period is 2007, when Kolodkin proposed to the ILC the work program of drafting an international convention that the 7-22 ILC Class now intends the U.N. General Assembly to adopt for the purpose of recognizing immunity for state officials from the criminal jurisdictions of foreign national courts. It bears emphasizing that the reason the 7-22 ILC Class must be designated as a separate class is because previous cohorts of the ILC consistently took a different view of international law on the matter. It would thus be wrong to sublimate that historical fact by supposing that the 7-22 ILC Class represents the entire ILC on this point all through the ages.

 The problem here is not that the members of the 7-22 ILC Class had tried to protect state officials from eccentric prosecutions abroad: such as for the consumption of alcohol, possession of cannabis and its other derivatives, sedition (locally defined to include casting the local sovereign in disreputable light), blasphemy, bigamy, pornography, abortion, extramarital relationships, and the like. The problem rather is that some members of the 7-22 ILC Class did their best to try and extend immunity to core international crimes. In the outcome, the draft text adopted by the whole 7-22 ILC Class would end up granting immunity to state officials when prosecuted for the crime of aggression in foreign courts. 

As it happened, the invasion of Ukraine accentuates the sublime oddness of efforts made at the ILC the effect of which is to unsettle the norm of accountability for violations of international criminal law—especially the crime of aggression. Had that draft been converted into a treaty before Russia’s invasion of Ukraine, the result would have been that Ukraine would be barred by international law from prosecuting any Russian official for the crime of aggression that the invasion entailed.

It thus becomes clear that the effect of what the 7-22 ILC Class is recommending to the United Nations is to remove the constraints that international law for long imposed on the crime of aggression since the end of World War II and even earlier.

Draft Article 7 

The 7-22 ILC Class tries to achieve immunity for state officials from foreign criminal jurisdictions through Article 7 of the draft articles (“Draft Article 7”). Draft Article 7 lists the following crimes as the only crimes over which state officials may not enjoy immunity in foreign criminal proceedings: crime of genocide, crimes against humanity, war crimes, crime of apartheid, torture, and enforced disappearance. Conspicuously absent from that list is the crime of aggression. A key reason that the 7-22 ILC Class offered, in their own words, for their list of international crimes to which immunity does not apply is that such crimes are listed in “article 5 of the Rome Statute” where they are described as “the most serious crimes of concern to the international community as a whole.”

Yet, the 7-22 ILC Class excluded the crime of aggression from the list, though that crime is also listed in Article 5 of the Rome Statute. The omission was deliberate. The fullest rationale offered for it is stated in this vague formulation: “The Commission took this decision in view of the nature of the crime of aggression, which would require national courts to determine the existence of a prior act of aggression by the foreign State, as well as the special political dimension of this type of crime, given that it constitutes a ‘crime of leaders.’” No further reasoning beyond this was offered for the exclusion.

In a report that predated the activation of the crime of aggression in 2017 (so that the ICC may exercise jurisdiction in relation to it), one of the rationales that the 7-22 ILC Class gave for precluding the crime of aggression from their Draft Article 7 was that the crime had not been activated for ICC’s jurisdiction, though it was always listed in the Rome Statute. But after the activation of the crime of aggression provision in the Rome Statute, the 7-22 ILC Class did not reconsider their position. They simply deleted that rationale from subsequent reports.

Given that even among the 7-22 ILC Class there was not full unity on the issue, it is important to delineate between the “minority” of the class, which consists of those who protested the exclusion of the crime of aggression from the list indicated in Draft Article 7 as the international crimes for which there is no immunity. Hereafter, “minority” will be used as a shorthand group reference to those who offered an explanation for their desire to exclude aggression from Draft Article 7. Since the rest of those who voted in favor of Draft Article 7’s general rejection of immunity for international crimes did not explain their votes, it is not possible to say whether they truly believed as a matter of principle that the crime of aggression is not an international crime or that it is one for which international law recognizes immunity. 

What seems clear is that the circumstances on the floor of the ILC were extremely embarrassing to the spirit of the graceful diplomacy that has usually guided ILC proceedings. For the first time in anyone’s memory, there was an open and recorded vote on a question before the ILC, and more so, the recorded voting followed an acrimonious debate. The subject of the debate was whether Draft Article 7 should be adopted at all to acknowledge that there are international crimes in respect of which immunity is not recognized in international law—in other words, there are international crimes that are immunity-proof. 

From all indications, what occurred was that Draft Article 7 was presented to the ILC members without the crime of aggression included on the list. That was a significant development because some members did not even wish to see the plenary of the 7-22 ILC Class adopt Draft Article 7 at all, given the insistence of those members that there should be no international crime in relation to which a state official should not have immunity before foreign criminal jurisdictions. Under those circumstances, a vote on the adoption of Draft Article 7 with only the crime of aggression missing did present a likely guillotine dilemma for some. For those facing that dilemma, to vote against the draft article or to abstain from voting in favor of the draft article as presented—because of the missing crime of aggression—entailed risking the non-adoption of any draft article with a list of immunity-proof international crimes. That would have resulted in victory for those members who did not want to have Draft Article 7 list any crimes as immunity-proof in international law. (It is unclear why no one seems to have proposed a motion to amend Draft Article 7 by adding the crime of aggression before proceeding to vote on the adoption of the article.) 

The record of voting during the ILC’s 69th session in 2017, on the adoption of Draft Article 7 as it stood, shows that of 30 members present and voting, 21 voted in favor of adoption of the draft article, out of their desire to see a reflection of the norm that international law rejects immunity for international crimes; eight voted against the adoption of Draft Article 7 out of the belief that there should be no crimes that are immunity-proof; and one member abstained, though in his explanation of position, he indicated support for the adoption of Draft Article 7. 

In their explanation of votes, almost all of the eight members who opposed the adoption of Draft Article 7 clearly insisted that the draft articles on immunity of state officials from foreign criminal jurisdictions should contain no provision excluding immunity. In the order of their interventions, these were the ILC members from Russia, the United States, the United Kingdom, China, India, Slovenia, Algeria, and Germany (the chairperson).

Only eight of the 21 members who voted in favor of Draft Article 7 made interventions during the explanation of votes. This was to be expected in light of the acrimonious debates that preceded the voting. As indicated earlier, the remainder of the 21 preferred silence. Given the guillotine dilemma mentioned above, it was unsurprising that many of those who voted in favor of Draft Article 7 went on to explain their regret that the crime of aggression had been omitted from the list of crimes indicated in Draft Article 7. At least seven of the 21 expressed that sentiment.

One of the members who expressed that regret was South Africa’s Dire Tladi. “There was no legal reason whatsoever that other crime should have been included, yet aggression, a crime that had featured in the work of the Commission since 1950, had been excluded,” he said. As he saw it, the “only rationale” for excluding the crime of aggression “was that it was a crime that was most likely to be committed by the powerful.” 

Sierra Leone’s Charles Jalloh echoed that political message—in addition to the legal arguments that he and Tladi employed to challenge the omission. He notably observed that “some statements had effectively suggested, inadmissibly, that individual members were working against the interests of the leaders of their own States and that other members should follow the lead set by the members from the major Powers, as measured by political and economic might. Such a political argument, essentially that might made right and that right should become law, was highly regrettable.”

The Relevant Legal Reasoning 

The apparent reason that political considerations troubled those who noted them on the record of the proceedings was because the rationale offered for the exclusion of the crime of aggression from Draft Article 7 was bereft of any legal reasoning. Indeed, objective legal considerations do not support the exclusion. Tladi and Jalloh went on to articulate some of the legal rationales that undermined the exclusion. In that connection, Tladi recalled that both as a matter of jus cogens and by reason of gravity of crimes, the crime of aggression had long been recognized in international law as an international crime, especially by the International Court of Justice and the U.N. General Assembly. 

Tladi was quite right. Regarding jus cogens, for instance, it is of interest that the same 7-22 ILC Class, in the context of its jus cogens project (for which Tladi was the Special Rapporteur), recommended the following conclusions to the UN General Assembly: 

• Conclusion 2: “Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community. They are universally applicable and are hierarchically superior to other rules of international law.” 


• Related to that is Conclusion 3: “A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”


• In Conclusion 23, the Commission indicates “a non-exhaustive list of norms that the International Law Commission has previously referred to as having [the status of jus cogens].” The first on the list is the “prohibition of aggression.” The second is “the prohibition of genocide.” The third is “prohibition of crimes against humanity.” Fifth and seventh are the “prohibition of apartheid” and the “prohibition of torture,” respectively. The “prohibition of enforced disappearances” is not mentioned directly. 

These conclusions of the 7-22 ILC Class on jus cogens—according to which the prohibition of the crime of aggression is listed as a jus cogens norm—do not support the omission of the same crime of aggression from the crimes listed in Draft Article 7.

Jalloh, in his turn, saw no legal reasoning that justified the inclusion of the “other core Rome Statute crimes, namely genocide, crimes against humanity and war crimes […], but, arguably the most serious crime known to international law, the crime of aggression, had been excluded.” In that regard, he recalled that the crime of aggression had been incorporated in the Charter of the International Military Tribunal at Nuremberg, under which some defendants had been tried and convicted by the International Military Tribunal. He further recalled that the judgment of the Nuremberg Tribunal famously considered that “to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” 

Jalloh also invoked the significance of U.N. General Assembly resolution 3314 (XXIX) of December 1974, in which the U.N. General Assembly adopted a definition of aggression by consensus. Article 5(2) of that resolution declared that a “war of aggression is a crime against international peace” and it “gives rise to international responsibility.” It may further be noted that the General Assembly’s unanimous declaration that a war of aggression is “a crime against international peace” is a reiteration of the charters of both the Nuremberg and the Tokyo tribunals, which contained provisions saying precisely that. In addition, both tribunals had specifically tried the entirety of the surviving cabinet members of the World War II-era governments of Germany and Japan (sparing from prosecution only Japan’s Emperor Hirohito).

What is more, following the judgment of the Nuremberg Tribunal, the U.N. General Assembly, during its first session, unanimously adopted resolution 95(I) in December 1946 affirming principles of international law recognized in the Charter and the judgment of the Nuremberg Tribunal. To make the affirmed principles more accessible, the General Assembly tasked the ILC in its first cohort of membership—the 1945 ILC Class—to distill those principles of international law. In 1951, the ILC published the “Nuremberg Principles of International Law recognized in the Charter and the Judgment of the Nuremberg Tribunal” (the “Nuremberg Principles”) comprising only seven articles. Notably, “crimes against peace,” encompassing “[p]lanning, preparation, initiation or waging of a war of aggression or a war,” was indicated first in the order of what was recognized in the Nuremberg Charter and judgment as conduct “punishable as crimes under international law” (Nuremberg Principle VI(a)). The other conduct recognized as international crimes in the Nuremberg Principles are “war crimes” (Nuremberg Principle VI(b)) and “crimes against humanity” (Nuremberg Principle VI(c)).

Jalloh’s interventions captured the progressive development of international law that has resulted in a norm of customary international law: to the effect that a war of aggression is now a primary international crime. As part of the consolidation of that development, he also recalled that the work done by the predecessors of the 7-22 ILC Class had also consistently recognized wars of aggression as criminal conduct in international law, as is evident in “article 2(a) of the 1954 Draft Code of Offences against the Peace and Security of Mankind, article 56 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind and article 20(b) of the 1994 draft Statute for an International Criminal Court.” 

Indeed, all of the ILC draft criminal codes indicate aggression as an international crime. In addition to draft codes of 1954 and 1996 and the draft statute that Jalloh referred to in the above quotation, aggression is indicated as a crime in international law in the 1951 Draft Code of Offences against the Peace and Security of Mankind (article 2) and the 1991 Draft Code of Crimes against the Peace and Security of Mankind (article 15).  

Regarding the rejection of immunity for “international crimes,” it may also be recalled that the Nuremberg Principles—a well-respected authority on the subject—dealt with that question. First, it provides in Principle I that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.” And then it provides in Principle III that “[t]he fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.”

Prior to the surprising attempt of the 7-22 ILC Class to exclude the crime of aggression from the list of immunity-proof international crimes, the past work product of the ILC had consistently rejected immunity for international crimes—including the crime of aggression. This is clear in the following ILC work products documents:

• 1951 Draft Code of Offences Against the Peace and Security of Mankind (article 3)


• 1954 Draft Code of Offences Against the Peace and Security of Mankind (article 3)


• 1991 Draft Code of Crimes Against the Peace and Security of Mankind (article 13) [see ILC Annual Report 1991 at p. 95] 


• 1996 Draft Code of Crimes Against the Peace and Security of Mankind (article 7).

There is even more to the story of the international community’s proscription of wars of aggression as an international crime. That story also includes the following legal history: 

• In 1919, the Paris Peace Conference’s Commission on Responsibility reoriented the course of international law by recommending that Kaiser Wilhelm II Emperor of Germany and King of Prussia during World War I must be prosecuted individually—with no immunity recognized him—for “violation of laws and customs of war and laws of humanity.” It is true that the commission recommended against prosecuting the Kaiser and his officials for “acts which provoked the war and accompanied its inception”—that is, commencing a war of aggression—partly because international law did not recognize a war of aggression as an international crime in the era that preceded World War I. The Commission did recommend it as “desirable that for the future penal sanctions should be provided for such grave outrages against the elementary principles of international law.” (See “Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties.”)


• By the opening words of the preamble to the Covenant of the League of Nations (1919), the members states indicated their agreement to the League’s Covenant, “[i]n order to promote international co-operation and to achieve international peace and security
  
  by the acceptance of obligations not to resort to war” (emphasis added).


• In Article 10 of the Covenant of the League of Nations, the members “[undertook] to respect and preserve as against external aggression the territorial integrity and existing political independence of all” members.


• The 1923 draft Treaty of Mutual Assistance sponsored by the League of Nations declared in Article 1 that “aggressive war is an international crime.” 


• The preamble to the League of Nations’s Geneva Protocol for the Pacific Settlement of International Disputes (1924) recognized “the solidarity of the members of the International Community” and that “a war of aggression constitutes a violation of this solidarity, and is an international crime.” It also recognized that the contracting parties were “desirous of facilitating the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between the States and of ensuring the repression of international crimes.” 


• On Sept. 24, 1927, the Assembly of the League of Nations adopted a declaration concerning wars of aggression, the preamble of which said that the League was “convinced that a war of aggression can never serve as a means of settling international disputes and is, in consequence, an international crime.” 


• On Feb. 18, 1928, 21 American Republics at the 6th International Conference of American States adopted a unanimous resolution in Havana, declaring that “war of aggression constitutes an international crime against the human species.” 


• Aug. 27, 1928, saw the adoption of the Kellogg-Briand Pact on the renunciation of war as an instrument of national policy, a pact widely ratified by independent members of the international community.


• On Feb. 16, 1932, the Council of the League of Nations adopted a resolution declaring that that “[n]o infringement of the territorial integrity and no change in the political independence of any member of the League brought about in disregard of Article 10 of the Covenant ought to be recognized as valid and effectual by members of the League of Nations[.]” 


• On Mar. 11, 1932, the Assembly of the League adopted a resolution reiterating the Feb. 16, 1932, declaration of the League’s Council. To that effect, the Assembly added that “the principles governing international relations and the peaceful settlement of disputes between members of the League above referred to are in full harmony with the Pact of Paris, which is one of the corner-stones of the peace organization of the world and under Article 2 of which the High Contracting Parties agree that the settlement or solution of all disputes or conflicts, of whatever nature and whatever origin they may be, which may arise among them shall never be sought except by pacific means.” (See League of Nations Assembly, “Report on the Sino-Japanese Dispute” (1933).)


• On Dec. 26, 1933, the 7th International Conference of American States meeting in Montevideo adopted the Convention on the Rights and Duties of States, according to which the contracting states, among other obligations, “definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure” (article 11).

All of these developments preceded the crystallization of international law’s proscription of wars of aggression as a crime long before the confirmation of that norm in Article 5 of the Rome Statute. In their report to the U.N. General Assembly, the 7-22 ILC Class did not tell that story. They should have begun with it and then explained why the construct of international law so established over the years must now be cast aside.

What Should the U.N. Do With This Recommendation?

For the foregoing reasons, the exclusion of the crime of aggression from Draft Article 7 is wholly unpersuasive. The consternation of that attempted exclusion is further compounded by the notable circumstances of some of the other crimes recognized in Draft Article 7, as conduct for which the defendant may enjoy no immunity. The crime of apartheid and the crime of enforced disappearances are amongst the crimes specifically recognized in Draft Article 7. It may be noted that all the crimes indicated in the draft article are already accounted for as international crimes within the Rome Statute. That, too, is the case with the crime of apartheid and the crime of enforced disappearances. Those two crimes are listed in Article 7 of the Rome Statute under the umbrella of crimes against humanity. The international treaties listed in the ILC report offer an apparent explanation for listing those two crimes separately in Draft Article 7. The listed treaties include the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) and the International Convention for the Protection of All Persons From Enforced Disappearances (2006).

There may be a value in listing the two crimes separately in Draft Article 7 beyond their now traditional recognition as crimes against humanity. This is because removing those two crimes from the technical umbrella of crimes against humanity strictly speaking may arguably unhitch them from the requirement to prove widespread or systemic attack against a civilian population, which is a condition precedent to the proper characterization of a conduct as a crime against humanity. Granted, the a priori characterization of apartheid as a “crime against humanity” in Article 1 of the Convention may provoke understandable objection to this interpretation. But such an objection only accentuates the question about the crime’s separate listing under Draft Article 7, in addition to the listing of “crimes against humanity,” which already includes the crime of apartheid. That concern is more attenuated in relation to the crime of enforced disappearances in relation to which the convention says in article 1(1) that “no one” may be subjected to enforced disappearance, although it is eventually provided in article 5 that a widespread or systematic practice of enforced disappearance amounts to a crime against humanity and shall attract the necessary punishment under international law. That being the case, an isolated incident of enforced disappearance would satisfy the object and purpose of the 2006 Convention in seeking to protect all persons from the practice of disappearances.

But, even so, there remains a problem for the 7-22 ILC Class in their attempt to exclude the crime of aggression from Draft Article 7, while including the crimes of apartheid and enforced disappearances. The 1973 convention against apartheid has only 109 states parties while the 2006 enforced disappearances convention has even fewer—70 parties. These ratification numbers further undermine the propriety of excluding the crime of aggression recognized as a crime in international law in article 5 of the Rome Statute, to which 123 states are parties, including its article 27, which precludes immunity for the international crimes listed in article 5. 

It is important to focus only on article 5 for purposes of the listing of international crimes, rather than complicate the analysis by a discussion of the implications of later amendments to the Rome Statute pursuant to which the crime of aggression received elaborations in article 8bis for operational purposes within the Rome Statute. For the sake of those for whom thoughts of the Rome Statute induce juristic allergy, that treaty is strictly speaking unnecessary to the idea that aggressive war is an international crime for which there is no immunity. Not only did the U.N. General Assembly “solemnly proclaim” the “principle” that a “war of aggression constitutes a crime against the peace, for which there is responsibility under international law,” but it also declared that the “principles of the Charter which are embodied in this Declaration constitute basic principles of international law[.]” The principle that a war of aggression is an international crime was repeated in General Assembly resolution 3314 (XXIX) of 1974, which defined acts of aggression by virtue of a template that later informed article 8bis of the Rome Statute. But, even much earlier, in 1950, the General Assembly declared in resolution 380 (V) of November 1950 that “any aggression … is the gravest of all crimes against peace and security throughout the world.”

The reform of international norms as recounted above—beginning with the Paris Peace Conference’s Commission on Responsibilities recommended in 1919 the desirability of “penal sanctions” for wars of aggression as “grave outrages against the elementary principles of international law” —comprises a ferment of state practice that has generated an indubitable rule of customary international law to the effect that a war of aggression is a crime in international law. That rule of customary international law was only codified in article 5(d) of the Rome Statute, which lists a war of aggression as an international crime over which the ICC may exercise jurisdiction.

Looking at the formation of customary international law in terms of consistent practice of states accepted as law, there is no better gauge of both the evidence and of its consistency than in the consistent record of decisions that states make when they meet to answer specific questions on a particular matter. Pronouncements and the conduct of states acting separately in their own internal affairs do not readily provide as sharp a view of concurrent state practice—given that not all states may have the opportunity, the inclination, or the expertise to express themselves at all on a particular topic of international law, let alone do so in a manner that readily aligns to show uniformity. It is for that reason that the sharpest appreciation of what states do or think on a particular matter is to be gained from the resolutions they adopt during their assemblies, addressing precisely the same matter. From that point of view, the international community has clearly recognized a war of aggression as an international crime.

Beyond the Rome Statute, international law also clearly recognizes that persons who launch wars of aggression may not enjoy immunity by reason of office including as heads of state. Such recognition of aggression as a crime and the denial of immunity for the defendant represent the current status quo of international law. There is no rational legal reasoning that supports the failure of the majority of the 7-22 ILC Class to continue that long-held understanding by reflecting it in Draft Article 7. 

The efforts of the majority of 7-22 ILC Class to change that status quo is still an effort in progress. As it were, the invasion of Ukraine has now brought those efforts to a point of reckoning. It is up to members of the U.N. General Assembly to decide whether to begin to undo what the international community has achieved in its project of outlawing and criminalizing wars of aggression, requiring accountability for the conduct. 

Recall that this was a project that commenced after World War I (a world war that began with an act of aggression). Recall also that the project was consolidated after World War II (another world war that also began with an act of aggression). To undo that project now, let alone in the casual manner that the 7-22 ILC Class recommends that undoing, is to betray our shared humanity, represented in the memorial of the “millions of children, women and men [who] have been victims of unimaginable atrocit[y,]” which the preamble suggests aggressive war as representing. It is also a direct betrayal of the determination pledged with fanfare by “the Peoples of the United Nations” in the opening words of the Charter—“to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” That was the primary motivation in the establishment of the United Nations.

As the matter is now in the hands of the member states of the United Nations, what the state of international law sensibly recommends the General Assembly to do is to complete the list of immunity-proof international crimes indicated in Draft Article 7. This simply requires adding the crime of aggression to that list.